IMM-7034-19
2021 FC 575
Giacomo Metallo (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Metallo v. Canada (Citizenship and Immigration)
Federal Court, McHaffie J.—By videoconference, March 31; Ottawa, June 9, 2021.
Citizenship and Immigration — Status in Canada — Permanent Residents — Humanitarian and Compassionate Considerations — Judicial review of Immigration and Refugee Board, Immigration Appeal Division (IAD) decision dismissing applicant’s appeal from respondent’s delegate’s decision concluding that applicant’s humanitarian and compassionate (H&C) considerations not justifying retention of his permanent resident status — Departure order therefore issued — In prior decisions dealing with acquiring permanent resident status, IAD using date officer prepared inadmissibility report assessing residency obligation — However, in applicant’s case, IAD used date applicant applied for his permanent resident card — Applicant becoming permanent resident of Canada in 1972 as toddler when arriving with parents from Italy — Spent his childhood in Canada before returning to Italy with family in 1982 — Started returning to Canada to visit family in 2009; then arrived to stay in 2016 — Applicant applying for permanent resident card in November 2015 — Application reviewed by immigration officer on November 14, 2016 who concluded that applicant not complying with residency obligation of Immigration and Refugee Protection Act, s. 28 — Section requiring permanent residents to be physically present in Canada for 730 days in each five-year period — Immigration officer assessing applicant’s case referring to two relevant five-year periods: five years prior to his application for permanent resident card; five years prior to review — Applicant’s shortfall 40 percent under period prior to application, 18 percent under period prior to review — Officer stating that Act, s. 28(2)(a)(i) requiring period prior to application be used — On appeal, IAD finding applicant`s breach of residency obligation significant — Whether IAD erring in assessing applicant’s H&C factors with reference to residency shortfall during five-year period prior to date of his application; whether IAD erring in considering applicant’s other H&C factors — IAD previously concluding that applicable five-year period was five-year period preceding Act, s. 44 report — However, in current case, IAD adopted contrary approach by considering five-year period ending on date of application — Although IAD clearly turning its mind to question of applicable “examination,” not providing explanation why triggering “examination” was date of application rather than date on which Act, s. 44 report prepared — Unexplained departure from IAD’s prior approach to determination of relevant five-year period unreasonable in present case even though lack of explanation likely stemming from parties not having identified issue — Determination of applicable five-year period having impact on applicant’s case — Extent of non-compliance with residency obligation was material factor in assessing whether H&C considerations justified retention of permanent resident status — IAD considered applicant’s breach of residency obligation to be significant — Not possible to say that difference in extent of shortfall between two five-year periods in applicant`s case would not have affected IAD`s consideration of H&C factors — IAD’s decision set aside; matter remitted for redetermination by different IAD panel — Application allowed.
This was an application for judicial review of an Immigration and Refugee Board, Immigration Appeal Division (IAD) decision dismissing the applicant’s appeal from a decision of the respondent’s delegate concluding that the applicant’s humanitarian and compassionate (H&C) considerations did not justify retention of his permanent resident status, noting that the extent of his non-compliance was significant. A departure order was therefore issued. This case had to determine what five-year period should be used in an H&C assessment for someone living in Canada who applied for a permanent resident card: the five years ending on the date of the application or the five years ending on the date of the officer’s decision. In prior decisions dealing with acquiring permanent resident status, the IAD has used the date an officer prepared an inadmissibility report assessing the residency obligation. However, in the applicant’s case the IAD used the date the applicant applied for his permanent resident card. This had a material effect on the IAD’s assessment of the residency shortfall and thus the H&C assessment.
The applicant became a permanent resident of Canada in 1972 when he came from Italy with his parents as a toddler. He spent his childhood in Canada before returning to Italy with his family in 1982. He started returning to Canada to visit family in 2009. He spent between a few weeks and a few months per year in Canada between then and when he arrived to stay in 2016. The applicant applied for a permanent resident card in November 2015. The application was reviewed by an immigration officer on November 14, 2016 who concluded that the applicant did not comply with the residency obligation of section 28 of the Immigration and Refugee Protection Act. That section requires permanent residents to be physically present in Canada for 730 days in each five-year period. The immigration officer assessing the applicant’s case referred to two relevant five-year periods: the five years prior to his application for a permanent resident card (November 24, 2010 to November 23, 2015) and the five years prior to the review (November 15, 2011 to November 14, 2016). The officer stated that subparagraph 28(2)(a)(i) of the Act required the applicant to accumulate 730 days of residence in the five years prior to the date of his application. However, the calculation was conducted in respect of each of the two indicated five-year periods. In the five-year period prior to the application date, the applicant had been in Canada 436 days, a 40 percent shortfall in the residency obligation. In the five years prior to the review, he had been in Canada for 601 days, an 18 percent shortfall. The officer found the applicant did not meet the 730-day obligation and had not presented H&C factors to justify retaining his permanent resident status. An inadmissibility report was therefore issued pursuant to subsection 44(1) of the Act. The applicant did not hear the result of this review or receive the section 44 report. He ultimately filed another application for a permanent resident card in August 2017. He received that card but was also summoned for an inadmissibility interview with a delegate of the Minister in July 2018. It was not until that interview that the applicant became aware of the inadmissibility report. The Minister’s delegate interviewed the applicant respecting the section 44 report. The applicant was apparently advised that the relevant five-year period was five years prior to the date of the report but that the period in question was November 24, 2010 to November 23, 2015 (i.e., five years prior to the date of the application).
On appeal, the IAD noted that under section 28, a permanent resident must be physically present in Canada for at least 730 days immediately preceding the control. The IAD stated that in this case, the control (examination) was when the applicant filed for a permanent resident card on November 23, 2015. The IAD found that the breach of the residency obligation was significant since it represented more than one third of the number of days of presence legally required. After considering the circumstances of the case, the IAD concluded there were not sufficient H&C grounds to justify special relief to allow the appeal of the departure order and permit the applicant to retain his permanent resident status.
The issues were whether the IAD erred in assessing the applicant’s H&C factors with reference to his residency shortfall during the five-year period prior to the date of his application and whether the IAD erred in considering the applicant’s other H&C factors.
Held, the application should be allowed.
As a general rule, the Court on judicial review will not address arguments that could have been raised before an administrative tribunal but were not. The IAD had the opportunity to decide the issue of the applicable five-year period at first instance, and did so, giving its view that the examination in question was the application for a permanent resident card. The IAD had at its disposal all evidence necessary to reach this conclusion, as both the date of the application and the date of the section 44 report were known, as were the number of days the applicant was in Canada during the respective periods. The respondent did not assert any prejudice arising from the issue being raised at this stage. In this context, in particular the inconsistency between the decision and the IAD’s recent case law on the matter, discretion was exercised herein to consider the issue, which could impact the applicant’s status as a permanent resident of Canada. In previous cases, the IAD has concluded that the applicable five-year period was the five-year period preceding the section 44 report. As well, a number of Federal Court decisions showed the IAD using the date of the section 44 report as the relevant date for the five-year period where the applicant is in Canada. In the current case, the IAD adopted the contrary approach by considering only the five-year period ending on the date of the application. The IAD identified this as being the five-year period prior to the examination (or control). Although the IAD clearly turned its mind to the question of the applicable “examination,” it gave no explanation why the triggering “examination” was the date of application rather than the date on which the section 44 report was prepared. While other cases examined may not be enough to constitute “established internal authority,” they included considered opinions of IAD members on the precise issue and appeared to reflect at least a longstanding practice, requiring some justification for departure. The unexplained departure from the IAD’s prior approach to the determination of the relevant five-year period was unreasonable even though the lack of explanation likely stemmed from the parties not having identified the issue.
The determination of the applicable five-year period had an impact on the applicant’s case. The respondent’s argument that the use of the earlier five-year window was not determinative given the IAD’s assessment of the shortfall and its determinations on the other H&C factors was rejected. The extent of non-compliance with the residency obligation was a material factor in assessing whether H&C considerations justified the retention of permanent resident status. The IAD considered the breach of the residency obligation significant since it represented more than one third of the number of days of presence legally required. The IAD’s consideration of the extent of the shortfall was sufficiently material to its rejection of the applicant’s appeal that it could not be concluded that the result would have been the same if the later five-year window had been used. While there may be no bright line between what is a “significant breach” and a “not significant breach,” it was not possible to say that the difference in the extent of the shortfall between the two five-year periods in the applicant’s case would not have affected the IAD’s consideration of the H&C factors.
Regarding the IAD’s analysis on the H&C factors, in assessing the reasons why the applicant left Canada, the IAD noted he had returned to Italy with his family as a child. Based on a passage the IAD quoted from Lai v. Canada (Minister of Citizenship and Immigration), it concluded that “the application of a special measure to the situation of the Appellant would be tantamount to endorsing the parents’ decision, which would be contrary to the case law”. It therefore evaluated “negatively” the factor relating to the reasons for leaving Canada. However, Lai does not suggest that granting an appeal based on H&C factors would be “tantamount to endorsing the parents’ decision.” Nor would such a result be contrary to the reasoning in Lai. To the contrary, the Federal Court has previously recognized that Lai does not preclude considerations of age at departure (Canada (Citizenship and Immigration) v. Ma). While Lai recognizes that a claim to relief should not be enhanced by a parent’s decision to remove a child, this does not mean that this must or should be treated as a negative factor in an H&C assessment. Given the conclusions regarding the applicable five-year period, it was not necessary to assess whether the IAD’s approach to some of the H&C issues constituted an error sufficient to render the decision unreasonable.
Therefore, the decision of the IAD was set aside and the matter was remitted for redetermination by a different panel of the IAD.
STATUTES AND REGULATIONS CITED
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 28, 44, 67(1)(c).
Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 28, 62(1).
CASES CITED
APPLIED:
Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; Canada (Citizenship and Immigration) v. Ma, 2017 FC 886, 53 Imm. L.R. (4th) 171.
CONSIDERED:
Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Rastgou v. Canada (Public Safety and Emergency Preparedness), 2018 CanLII 129864 (I.R.B.); Parikh v. Canada (Public Safety and Emergency Preparedness), 2019 FC 13, affg 2015 CanLII 92733 (I.R.B.); Li v. Canada (Citizenship and Immigration), 2018 FC 187, affg 2017 CanLII 63732 (I.R.B.); Huang v. Canada (Citizenship and Immigration), 2020 FC 327, affg 2019 CanLII 30481 (I.R.B.); Lai v. Canada (Minister of Citizenship and Immigration), 2006 FC 1359, 60 Imm. L.R. (3d) 17.
REFERRED TO:
Gazi v. Canada (Immigration, Refugees and Citizenship), 2017 FC 993; Oleynik v. Canada (Attorney General), 2020 FCA 5, 441 D.L.R. (4th) 744; Yahaya v. Canada (Citizenship and Immigration), 2019 FC 1570; Amorocho-Diaz v. Canada (Citizenship and Immigration), 2009 CanLII 76301 (I.R.B.); Tantoush v. Canada (Citizenship and Immigration), 2014 FC 245, 450 F.T.R. 133; Behl v. Canada (Citizenship and Immigration), 2018 FC 1255; Sanchez Rebaza v. Canada (Immigration, Refugees and Citizenship), 2019 FC 509; Gilbert v. Canada (Public Safety and Emergency Preparedness), 2017 CanLII 77079 (I.R.B.); Razaghi v. Canada (Public Safety and Emergency Preparedness), 2012 CanLII 99644 (I.R.B.); Ambat v. Canada (Citizenship and Immigration), 2010 CanLII 80733 (I.R.B.), affd 2011 FC 292, 386 F.T.R. 35.
AUTHORS CITED
Citizenship and Immigration Canada. Operational Manual: Overseas Processing (OP), Chapter OP 10: “Permanent Residency Status Determination”.
APPLICATION for judicial review of a decision (2019 CanLII 129108 (I.R.B.)) of the Immigration Appeal Division of the Immigration and Refugee Board dismissing the applicant’s appeal from a decision of the respondent’s delegate concluding that the humanitarian and compassionate considerations of the applicant did not justify retention of his permanent resident status. Application allowed.
APPEARANCES
Arghavan Gerami for applicant.
Yusuf Khan for respondent.
SOLICITORS OF RECORD
Gerami Law Professional Corporation, Ottawa, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment and judgment rendered in English by
McHaffie J.:
I. Overview
[1] Every Canadian permanent resident is required to comply with a residency obligation, which typically requires physical presence in Canada for 730 days in each five-year period. The obligation applies to every five-year period, but it is sufficient to show it is met in respect of the five-year period “immediately before the examination” during which it is assessed. A breach of the residency obligation is overcome if an officer concludes that humanitarian and compassionate (H&C) considerations justify the retention of permanent resident status. The main issue in this case is what five-year period should be used in an H&C assessment for someone living in Canada who applied for a permanent resident card: the five years ending on the date of the application or the five years ending on the date of the officer’s decision.
[2] In prior decisions dealing with this circumstance, the Immigration Appeal Division (IAD) has used the date an officer prepared an inadmissibility report assessing the residency obligation. This approach is also seen in decisions of this Court, although not as a contested issue. However, in Giacomo Metallo’s case the IAD used the date he applied for his permanent resident card: Metallo v. Canada (Public Safety and Emergency Preparedness), 2019 CanLII 129108 (I.R.B.) (IAD Decision), at paragraph 9. This had a material effect on the IAD’s assessment of the residency shortfall and thus the H&C assessment. I conclude this unexplained departure from prior decisions is unreasonable, and requires Mr. Metallo’s appeal to be redetermined. I reach this conclusion even though Mr. Metallo’s counsel did not object to the use of the application date or the shortfall count at his IAD hearing. While an applicant is typically precluded from relying on arguments on judicial review that were not raised before an administrative tribunal, I conclude the Court should exercise its discretion to consider the issue in the circumstances of this case.
[3] The application for judicial review is therefore allowed. Mr. Metallo’s appeal is remitted to the IAD for redetermination by another member.
II. Issues and Standard of Review
[4] Mr. Metallo raises the following issues on this application for judicial review:
A. Did the IAD err in assessing Mr. Metallo’s H&C factors with reference to his residency shortfall during the five-year period prior to the date of his application?
B. Did the IAD err in considering Mr. Metallo’s other H&C factors?
[5] The parties agree the IAD’s decision on these issues is reviewable on the reasonableness standard: Canada v. (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov], at paragraphs 16–17, 23–25 and 115; Gazi v. Canada (Immigration, Refugees and Citizenship), 2017 FC 993, at paragraphs 17–19.
[6] A reasonable decision is one that bears the “hallmarks of reasonableness—justification, transparency and intelligibility—and [is] justified in relation to the relevant factual and legal constraints that bear on the decision”: Vavilov, at paragraph 99. Relevant “legal constraints” that bear on the decision include the relevant statutory scheme, prior binding precedent, the past decisions of the administrative body, and the submissions of the parties: Vavilov, at paragraphs 106, 108–112 and 127–132.
III. Analysis
A. The IAD Unreasonably Adopted a Different Five-Year Period in Mr. Metallo’s Case
(1) Factual context
[7] Mr. Metallo became a permanent resident of Canada in 1972 when he came from Italy with his parents as a toddler. He spent his childhood in Canada before returning to Italy with his family in 1982 after his father had a workplace accident. He started returning to Canada to visit family in 2009. He spent between a few weeks and a few months per year in Canada between then and when he arrived to stay in 2016. Mr. Metallo applied for a permanent resident card in November 2015 to allow him to get a social insurance number and begin working in Canada.
[8] Although he did not find out about it for a number of years, Mr. Metallo’s application for a permanent resident card was reviewed by an immigration officer on November 14, 2016. The officer concluded Mr. Metallo did not comply with the residency obligation of section 28 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). That section requires permanent residents to be physically present in Canada for 730 days in each five-year period (with certain qualifications and exceptions not relevant here):
Residency obligation
28 (1) A permanent resident must comply with a residency obligation with respect to every five-year period.
Application
(2) The following provisions govern the residency obligation under subsection (1):
(a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are
(i) physically present in Canada,
…
(b) it is sufficient for a permanent resident to demonstrate at examination
…
(ii) if they have been a permanent resident for five years or more, that they have met the residency obligation in respect of the five-year period immediately before the examination; …
(c) a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination. [Emphasis added; irrelevant subparagraphs omitted.]
[9] The immigration officer assessing Mr. Metallo’s case referred to two “Relevant 5 year period[s]”: the five years prior to his application for a permanent resident card (November 24, 2010 to November 23, 2015) and the five years prior to the review (November 15, 2011 to November 14, 2016). The officer stated that subparagraph 28(2)(a)(i) of the IRPA required Mr. Metallo to accumulate 730 days of residence in the five years prior to the date of his application. However, they conducted the calculation in respect of each of the two indicated five-year periods. In the five-year period prior to the application date, Mr. Metallo had been in Canada 436 days, a 40 percent shortfall in the residency obligation. In the five years prior to the review, he had been in Canada for 601 days, an 18 percent shortfall.
[10] The officer found Mr. Metallo did not meet the 730-day obligation, and had not presented H&C factors to justify retaining his permanent resident status. They therefore issued an inadmissibility report pursuant to subsection 44(1) of the IRPA, giving the opinion that Mr. Metallo did not comply with the residency obligation.
[11] For unknown reasons, Mr. Metallo did not hear the result of this review or receive the section 44 report, despite efforts to follow up on the status of his permanent resident card application. He ultimately filed another application for a permanent resident card in August 2017. He received that card, but was also summoned for an inadmissibility interview with a delegate of the Minister in July 2018. It was not until that interview that Mr. Metallo became aware of the inadmissibility report.
[12] The Minister’s delegate interviewed Mr. Metallo with respect to the section 44 report. The notes of that interview in the Global Case Management System (GCMS) state that Mr. Metallo was advised that the relevant five-year period was “five years prior to the date of the report” (emphasis added), but that the period in question was November 24, 2010 to November 23, 2015 (i.e., five years prior to the date of the application). In an oral decision issued the same day, the Minister’s delegate concluded that Mr. Metallo’s H&C considerations did not justify retention of his permanent resident status, noting that the extent of his non-compliance was significant. They therefore issued a departure order on July 10, 2018. In the GCMS notes apparently entered at the conclusion of the interview, the Minister’s delegate referred again to the same five-year period, but referred to the date of application for a permanent resident card rather than the date of the section 44 report.
(2) The IAD hearing and decision
[13] Mr. Metallo appealed to the IAD. He did not contest that he did not comply with the residency requirement, which is true for either five-year period. At the outset of the hearing, the IAD referred to the five-year period prior to the permanent resident card application, and asked whether Mr. Metallo was contesting the validity of the decision, or was just relying on H&C considerations to explain the breach. Counsel confirmed that the appeal was based on H&C considerations. The remainder of the hearing pertained to the H&C factors. However, during one exchange, counsel confirmed that Mr. Metallo was not disputing that he had not met the residency requirement, and did not object to the count of 436 days that Mr. Metallo was in the country.
[14] The IAD dismissed Mr. Metallo’s appeal. It noted that under section 28, a permanent resident “must be physically present in Canada for at least 730 days immediately preceding the control” (the IAD uses the term “control” rather than “examination,” presumably related to the use of the term le contrôle in the French version of the section): IAD Decision, at paragraph 9. The IAD stated that in this case, the control (examination) was when Mr. Metallo filed for a permanent resident card on November 23, 2015. The IAD found that the breach of the residency obligation “is significant since it represents more than one third of the number of days of presence legally required”: IAD Decision, at paragraph 11. After considering the circumstances of the case, the IAD concluded there were not sufficient H&C grounds to justify special relief to allow the appeal of the departure order and permit Mr. Metallo to retain his permanent resident status: IRPA, paragraph 67(1)(c).
(3) The Court will exercise discretion to consider the applicable five-year period
[15] As a general rule, the Court on judicial review will not address arguments that could have been raised before an administrative tribunal but were not: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 [Alberta Teachers], at paragraphs 22–23; Oleynik v. Canada (Attorney General), 2020 FCA 5, 441 D.L.R. (4th) 744 [Oleynik], at paragraph 71. The reasons for the rule include allowing the tribunal to make the decision at first instance, the risk of prejudice to the other party, and the risk of having an inadequate evidentiary record: Alberta Teachers, at paragraphs 24–26; Oleynik, at paragraph 71; Yahaya v. Canada (Citizenship and Immigration), 2019 FC 1570, at paragraph 41.
[16] In this case, as in Alberta Teachers itself, the “rationales for the general rule have limited application”: Alberta Teachers, at paragraph 28. The IAD had the opportunity to decide the issue at first instance, and did so, giving its view that the examination in question was the application for a permanent resident card. The IAD had at its disposal all evidence necessary to reach this conclusion, as both the date of the application and the date of the section 44 report were known, as were the number of days Mr. Metallo was in Canada during the respective periods. The Minister did not assert any prejudice arising from the issue being raised at this stage.
[17] In the current context, in particular the inconsistency between this decision and the IAD’s recent jurisprudence, as discussed below, I conclude the Court should exercise its discretion to consider the issue, which may have an impact on Mr. Metallo’s status as a permanent resident of Canada.
(4) Prior decisions on the applicable five-year period
[18] As discussed by the majority of the Supreme Court in Vavilov, administrative decision makers are not bound by their previous decisions as a matter of stare decisis. Nonetheless, those affected by administrative decisions are entitled to expect that like cases will generally be treated alike: Vavilov, at paragraph 129. As a result, consistency with an administrative body’s past decisions is a constraint to be considered in assessing reasonableness. Where a decision maker departs from “longstanding practices or established internal authority,” it bears a “justificatory burden” of explaining that departure in its reasons: Vavilov, at paragraph 131.
[19] In Rastgou v. Canada (Public Safety and Emergency Preparedness), 2018 CanLII 129864 (I.R.B.) [Rastgou], the IAD was faced with the same situation that arose in Mr. Metallo’s case. Mr. Rastgou had applied for a new permanent resident card from within Canada and a section 44 report was prepared almost a year later. In considering whether H&C factors favoured Mr. Rastgou, the IAD had to consider whether his residency shortfall should be calculated based on the five-year period preceding the application, or the five-year period preceding the report: Rastgou, at paragraphs 3 and 9–12. As in Mr. Metallo’s case, the officer identified both windows in their notes: Rastgou, at paragraph 13.
[20] The Minister in Rastgou argued the earlier five-year period should apply. At the same time, the Minister said the officer identified both windows because the applicant would be found to comply with section 28 if they met the residency requirement in the later five-year period preceding the section 44 report. The IAD felt this supported a finding that the later window applied: Rastgou, at paragraph 16.
[21] The IAD in Rastgou contrasted the situation of those applying from within Canada with that of someone applying for a permanent resident travel document overseas: Rastgou, at paragraphs 17–19. In such cases, compliance with the residency obligation is assessed based on the five-year period preceding the application: see, e.g., Amorocho-Diaz v. Canada (Citizenship and Immigration), 2009 CanLII 76301 (I.R.B.) [Amorocho-Diaz], at paragraph 16, quoting Operational Manual: Overseas Processing (OP), Chapter OP 10 “Permanent Residency Status Determination”. Using the date of application when an applicant is outside Canada prevents them from being disadvantaged by any delay in the assessment of the application: Amorocho-Diaz, at paragraph 16. This approach can be seen in the factual descriptions of such determinations reviewed by this Court: Tantoush v. Canada (Citizenship and Immigration), 2014 FC 245, 450 F.T.R. 133, at paragraph 16; Behl v. Canada (Citizenship and Immigration), 2018 FC 1255, at paragraphs 7–8; Sanchez Rebaza v. Canada (Immigration, Refugees and Citizenship), 2019 FC 509, at paragraphs 9–10.
[22] The IAD concluded that using the date on which the review was conducted and the report issued was consistent with the language of subparagraph 28(2)(b)(ii) of the IRPA, the language of subsection 62(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227, and the Minister’s position on compliance with section 28: Rastgou, at paragraphs 16–21. It therefore concluded the applicable five-year period was the five-year period preceding the section 44 report, noting this is “consistent with the approach taken by other panels and Minister’s counsel in similar types of appeals”: Rastgou, at paragraph 22, citing Gilbert v. Canada (Public Safety and Emergency Preparedness), 2017 CanLII 77079 (I.R.B.) [Gilbert] and Razaghi v. Canada (Public Safety and Emergency Preparedness), 2012 CanLII 99644 (I.R.B.) [Razaghi].
[23] In addition to the Gilbert and Razaghi cases, a number of decisions of this Court show the IAD using the date of the section 44 report as the relevant date for the five-year period where the applicant is in Canada. In Parikh, the five-year period examined ended on the date of the section 44 report, although the applicant entered Canada and was interviewed five months earlier: Parikh v. Canada (Public Safety and Emergency Preparedness), 2019 FC 13 [Parikh], at paragraphs 8 and 14, affg 2015 CanLII 92733 (I.R.B.). While the applicable period was not in dispute, Justice Pentney described the five-year period ending on the date of the section 44 report as the “correct period”: Parikh, at paragraph 14. Similarly, in Li the applicant entered Canada and was examined in April 2016, but the applicable five-year period ended on the date of the section 44 report in May 2016: Li v. Canada (Citizenship and Immigration), 2018 FC 187, at paragraph 10, affg 2017 CanLII 63732 (I.R.B.), at paragraph 5 and footnote 4. In Huang, the period examined was again the five years prior to the determination, rather than the five years prior to the applicant’s application for a permanent resident travel document: Huang v. Canada (Citizenship and Immigration), 2020 FC 327, at paragraphs 4 and 6, affg 2019 CanLII 30481 (I.R.B.).
[24] The IAD in the current case, however, adopted the contrary approach by considering only the five-year period ending on the date of the application. The IAD identified this as being the five-year period prior to the examination (or control). While the IAD clearly turned its mind to the question of the applicable “examination,” it gave no explanation why the triggering “examination” was the date of application rather than the date on which the section 44 report was prepared. While Rastgou and the other cases referred to above may not be enough to constitute “established internal authority,” they include considered opinions of IAD members on the precise issue and appear to reflect at least a longstanding practice, requiring some justification for departure: Vavilov, at paragraph 131.
[25] In my view, the unexplained departure from the IAD’s prior approach to the determination of the relevant five-year period is unreasonable, even though the lack of explanation likely stems from the parties not having identified the issue.
(5) Impact on Mr. Metallo’s case
[26] Not every flaw or shortcoming in a decision will render the decision as a whole unreasonable. An administrative decision should not be set aside for a “minor misstep” or an error on a superficial or peripheral matter: Vavilov, at paragraph 100. The Minister suggests the use of the earlier five-year window was not determinative given the IAD’s assessment of the shortfall and its determinations on the other H&C factors.
[27] I disagree. The extent of non-compliance with the residency obligation is a material factor in assessing whether H&C considerations justify the retention of permanent resident status: Ambat v. Canada (Citizenship and Immigration), 2010 CanLII 80733 (I.R.B.), at paragraph 38, affd 2011 FC 292, 386 F.T.R. 35, at paragraph 27. As noted above, the IAD considered the breach of the residency obligation “significant since it represents more than one third of the number of days of presence legally required”: IAD Decision, at paragraph 11.
[28] The Minister argues the difference in the extent of the shortfall (from 40 percent to 18 percent) was not enough to change the outcome, and contrasts it with the 10 percent non-compliance that the IAD found to be a “not significant breach” in Rastgou. In my view, the IAD’s consideration of the extent of the shortfall was sufficiently material [at paragraph 25] to its rejection of Mr. Metallo’s appeal that I cannot conclude the result would have been the same if the later five-year window had been used. While there may be no bright line between what is a “significant breach” and a “not significant breach,” I am unable to say that the difference in the extent of the shortfall between the two five-year periods in Mr. Metallo’s case would not have affected the IAD’s consideration of the H&C factors. I therefore conclude that the IAD’s decision should be set aside.
[29] Mr. Metallo argued that the IAD’s use of the five-year period prior to the date of application was inconsistent with the principles of statutory interpretation, and that the only reasonable interpretation was that the “five-year period immediately before the examination” was the five years ending on the date of the section 44 report: Vavilov, at paragraphs 115–124. In the circumstances, I do not believe I should pronounce on these statutory interpretation arguments or purport to undertake that exercise at first instance: Vavilov, at paragraphs 115–116. Rather, the matter will be remitted to the IAD for redetermination: Vavilov, at paragraphs 140–141.
B. The IAD’s Analysis of the H&C Factors
[30] The foregoing conclusion is sufficient to determine this application for judicial review. As the IAD on redetermination will have discretion to consider the H&C factors in context, I will not discuss Mr. Metallo’s arguments on this issue at length, particularly as they relate to factual and discretionary assessments. However, I do consider it appropriate to make brief comments on two elements of the IAD’s discussion that relate to more legal matters.
[31] First, in assessing the reasons why Mr. Metallo left Canada, the IAD noted he had returned to Italy with his family as a child. The IAD cited paragraph 26 of this Court’s decision in Lai v. Canada (Minister of Citizenship and Immigration), 2006 FC 1359, 60 Imm. L.R. (3d) 17 [Lai]:
In the case of a dependent child of relatively tender years there is little, if any, opportunity to independently fulfill the residency obligation required to preserve landed status or to create the genuine ties to Canada that are typically necessary for H & C relief. In most cases the child can only accomplish that which the parents are prepared to allow and support. Ms. Lai’s status in Canada may have been jeopardized by the decisions of her parents, but her claim to relief should not be enhanced by those parental decisions.
[32] Based on this passage, the IAD concluded that “the application of a special measure to the situation of the Appellant would be tantamount to endorsing the parents’ decision, which would be contrary to the case law”: IAD Decision, at paragraph 15. It therefore evaluated “negatively” the factor related to the reasons for leaving Canada.
[33] In my view, Lai does not suggest that granting an appeal based on H&C factors would be “tantamount to endorsing the parents’ decision.” Nor would such a result be contrary to the reasoning in Lai. To the contrary, this Court in Ma recognized that Lai does not preclude considerations of age at departure: Canada (Citizenship and Immigration) v. Ma, 2017 FC 886, 53 Imm. L.R. (4th) 171 [Ma], at paragraphs 22–23. While Lai recognizes that a claim to relief should not be enhanced by a parent’s decision to remove a child, this does not mean that this must or should be treated as a negative factor in an H&C assessment.
[34] Second, the IAD referred to Mr. Metallo’s lack of awareness that he was a permanent resident in Canada, stating that “no one can plead ignorance of the law”: IAD Decision, at paragraph 17. However, Justice Locke in Ma observed that “there is an important distinction between reliance on ignorance of the law and reliance on ignorance of one’s legal status”: Ma, at paragraph 24. He concluded that the latter was a mistake of fact rather than one of law, which could be a relevant H&C consideration: Ma, at paragraph 24.
[35] Given my conclusions regarding the applicable five-year period, I need not assess whether the IAD’s approach to these issues constituted an error sufficient to render the decision unreasonable.
IV. Conclusion
[36] The decision of the IAD is therefore set aside and the matter is remitted for redetermination by a different panel of the IAD.
[37] Neither party proposed a question for certification. At the conclusion of the hearing, I granted the applicant leave to give the matter of certification further consideration, but no question for certification was subsequently proposed. In my view, no question meeting the requirements for certification arises in the matter and no question will be certified.
JUDGMENT in IMM-7034-19
THIS COURT’S JUDGMENT is that
1. The application for judicial review is granted. The Immigration Appeal Division’s decision is set aside and Mr. Metallo’s appeal is remitted to the Immigration Appeal Division for redetermination by a differently constituted panel.